In Cirquitella v. C. C. Callaghan, Inc., 1938, 331 Pa. 465, 467, 200 A. 588, 589, a leading case, the Supreme Court of Pennsylvania laid down the controlling rule in such situation:
'Where two persons are driving vehicles in the same direction on a city street, it is the duty of the driver of the rear one to be vigilant, and ordinarily to have his car under such control as to be able to prevent a rear end collision in the event the front vehicle suddenly stops. Zandras v. Moffett, 286 Pa. 477, 133 A. 817, 47 A.L.R. 699; Lang v. Hanlon, 302 Pa. 173, 153 A. 143; Farmer v. Nevin Bus Lines, Inc., 107 Pa.Super. 153, 163 A. 41; Lelar v. Quaker City Cabs, 108 Pa.Super. 15, 164 A. 105.
'Of course it does not follow that the mere happening of a rear end collision constitutes negligence as a matter of law on the part of the operator of the rear automobile. The occurrence of such a collision does not raise a presumption that the driver of either vehicle was negligent. It is a question of fact for the jury to be determined from all the evidence of the case. The plaintiff must prove that the collision resulted from the negligence of defendant.'
If the collision occurred in the manner described in McClain's testimony, counsel's remarks were, a fortiori, erroneous. While the evidence certainly raised serious doubts concerning McClain's credibility, the weight to be given his testimony was for the jury.
We recognize, of course, that the jury must take the law given to them by the Court and not by counsel, and we so instructed the jury. Nevertheless, we are not persuaded that counsel's forceful and eloquent language was harmless in its effect on the jury.
At another place in his summation, Moore's counsel stated:
'If Mr. Moore could in any way truthful adopt any part of Mr. McClain's version of this accident, I wouldn't have held him back, and I am sure he wouldn't have been held back. I wouldn't put him on the stand to encourage him to tell anything but the truth.'
The plain import of this language was that Moore could not truthfully adopt any part of McClain's version of the accident, and that McClain's testimony was altogether false. We think this exceeded the limits of fair comment, since Moore had not taken the stand and his 'version' was not before the jury. Counsel, in substance and effect, was testifying, and his testimony was the purest hearsay. It may be noted that Moore had stated under Oath in his deposition -- which was not offered -- that he had no recollection of the details of the accident. Counsel, apparently, was confronted with conflicting statements by Moore, and was faced with difficult problems in the defense of his client's interests.
Finally, Moore's counsel said to the jury:
'Members of the jury, I would almost, as far as this question of liability, be compelled to say, and it is awfully hard in these cases to stand up here and tell the jury that my man is at fault, but in good conscience and under the facts of this case, I have to tell you that.'
Here, counsel assumed the truth of Moore's undisclosed version of the accident and the untruth of McClain's testimony, and on the basis of that assumption reached the conclusion that Moore was legally at fault merely because he was the driver of the rear vehicle, -- a conclusion without support in authority.
Plaintiff sustained serious and permanent injury as the result of this accident, and she is entitled to a fair and just trial of her claim for compensation. We are persuaded that she may well have suffered undue prejudice, and that the interests of justice require the grant of a new trial.
Now, September 13th, 1961, it is ordered and decreed that:
1. Plaintiff's motion for judgment is denied.
2. The judgments on the principal claim and on the third-party claim are set aside, and plaintiff's motion for a new trial is granted.
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